Questions arise regarding lowering flag to half-staff

LAKEVILLE — A request to lower the flag to half-staff revealed some confusion over who has the power to decide to lower the American flag to half-staff in honor of fallen military or community members.

Greg O'Brien, a Freetown resident, attended the Lakeville Board of Selectmen's meeting Monday night to ask the board to consider lowering the flag in front of town buildings to half-staff to honor Petty Officer Second Class Tyler J. Trahan, 22, a Freetown resident who was killed last week in Iraq.

"I'd like to address the fact that we've got a fallen war hero with significant contributions, and with the relationship between the towns, I'd like to suggest that you people mirror the Board of Selectmen in Freetown to have the flags go at half-staff to represent his total sacrifice," Mr. O'Brien said.

Selectman Charles Evirs said that while he agreed with Mr. O'Brien, the only way that a flag can be lowered to half-staff is by order of the president or the governor. Town Administrator Rita Garbitt said the town receives notification from the governor's office ahead of time, noting what day the flag is to be lowered to half-staff, for an order to lower the flag for all the servicemen who have died in the line of duty.

Mr. O'Brien noted that the Freetown board had ordered their flags lowered to half-staff until Memorial Day in honor of Petty Officer Trahan, and that Apponequet Regional High School's flag was also at half-staff, acting on a request from the Freetown selectmen.

"I would like to suggest that you have that same option to do that," Mr. O'Brien said. "There's best practices, and there's practices, and I'd like to suggest to you that the best practice would be to honor him in similar fashion as East Freetown has."

Mr. Evirs reiterated that the rules require an order from either the United States President or the governor of the state to lower the flag to half mast.

"Outside of that, and I'm a Navy veteran myself, I'm torn between your request and what is also respect for the country. To lower the flag without their orders or their consent is also disrespectful to our flag," he said. "Those are the rules. Those are the laws"¦sometimes there's a lot of things that you want to do, and sometimes you can't do them.

Mr. Evirs suggested that the board should send a request to the governor's office asking for the authority to lower the flag in honor of Petty Officer Trahan, and welcomed any similar efforts Mr. O'Brien wanted to make.

"Even though Petty Officer Trahan wasn't a Lakeville resident, the ties between Lakeville and Freetown, naturally, because of the regional school system, are great. Also, Petty Officer Trahan went to Old Colony vocational school, again the ties are still here. There's a lot of crossover between Freetown and Lakeville," Mr. Evirs said.

Mr. O'Brien, who said he is also retired from the Navy, disagreed that lowering the flag without a direction from the governor or president was necessarily disrespectful. He noted that he had contacted Rep. Steve Canessa, who had emailed Ms. Garbitt asking if the town had thought about lowering the flag in honor of Petty Officer Trahan.

Selectwoman Nancy Yeatts said that she knew that a directive from the governor or president meant that it needed to be done, but she did not know that the law did not allow for the decision to lower the flag without such a directive. Chairman of Selectmen Derek Maksy said he also had not seen the actual law, and was not sure of what it allowed.

"There are certain things that aren't permitted under the First Amendment freedom of speech," Mr. Evirs said. "When it has to do with the flag, there are things in place that say what you can't do with the United States flag."

The United States Code Title 4 gives direction on how the flag is to be displayed. Regarding displaying the flag at half-staff, it states, "By order of the President, the flag shall be flown at half-staff upon the death of principal figures of the United States Government and the Governor of a state, territory, or possession, as a mark of respect to their memory. In the event of the death of other officials or foreign dignitaries, the flag is to be displayed at half-staff according to Presidential instructions or orders, or in accordance with recognized customs or practices not inconsistent with law. In the event of the death of a present or former official of the government of any state, territory, or possession of the United States or the death of a member of the Armed Forces from any State, territory, or possession of the United States, the Governor of that State, territory, or possession may proclaim that the National flag shall be flown at half-staff"¦When the Governor of a State, territory, or possession, or the Mayor of the District of Columbia, issues a proclamation under the preceding sentence that the National flag be flown at half-staff in that State, territory, or possession or in the District of Columbia because of the death of a member of the Armed Forces, the National flag flown at any Federal installation or facility in the area covered by that proclamation shall be flown at half-staff consistent with that proclamation."

However, a CRF Report for Congress entitled "The United States Flag: Federal Law Relating to Display and Associated Questions," prepared by John R. Luckey, Legislative Attorney with the American Law Division for members and committees of Congress, notes that as long as the flag is being displayed with a manner of respect, the spirit of the Flag Code is being upheld.

"The Flag Code is a codification of customs and rules established for the use of certain civilians and civilian groups. No penalty or punishment is specified in the Flag Code for display of the flag of the United States in a manner other than as suggested. Cases which have construed the former 36 U.S.C. § 175 have concluded that the Flag Code does not proscribe conduct, but is merely declaratory and advisory," the report states.

Further confusing the issue is the fact that Lakeville has flown the flag at half-staff without direction from the governor or president on many occasions when a well-known member of the community has passed away. Most recently, the flag was flown at half-staff in April for the memorial service for Marguerite "Peggy" Mills, a former member of the Ladies Auxilliary, Board of Registrars, and assistant treasurer/collector.

Some towns in Massachusetts have stated policies regarding their own right to determine when to fly the flag at half-staff. The town of Needham's website states that "the Board of Selectmen may direct that the United States Flag be flown at half staff on all municipal buildings and grounds under their jurisdiction on occasions other than those specified which they consider proper." The towns of Concord, Boxborough, and Wellfleet all post policies allowing for the flag to be lowered other than on order of the governor or president. The town of Belchertown voted last year to end such a practice, returning to following the national example after 12 years of lowering the flag to honor town employees and others who died.